Monday, August 31, 2009

New Yorker Article Casts Doubt on All Evidence that Led to Execution of Todd Willingham

Governor Perry Should Urge Texas Board of Pardons and Paroles, Judges and DAs to Suspend Executions

The New Yorker today published a 16,000 word report by David Grann that examines all the evidence used against Todd Willingham that led to his execution and finds that none of it was valid. There is no doubt now that Texas executed an innocent person. The State of Texas should halt executions in light of the New Yorker report and last week's news that the investigator hired by the Texas Forensic Science Commission has concluded that the fire in the Willingham case was accidental and not arson. Willingham was executed for arson/murder in 2004. In fact, there was no arson, so there was no crime. Texas executed an innocent person.

"This is the greatest crisis in the history of capital punishment in Texas. Our state has lost the moral authority to continue conducting executions after having executed an innocent person. Texas Moratorium Network calls on Governor Perry to urge the Texas Board of Pardons and Paroles to recommend stays for all ten people who currently have scheduled execution dates. Perry should also urge all District Attorneys and judges in Texas to stop setting new execution dates and to withdraw all pending execution dates. Governor Perry does not have the authority to unilaterally impose a moratorium, but he can act to create a consensus among judges, district attorneys and the Texas Board of Pardons and Paroles to stop executions. The Texas system of carrying out executions must be suspended and the Governor should appoint a balanced commission to examine all aspects of the Texas death penalty system to determine what went wrong in the Willingham case and whether it is possible to prevent any more executions of innocent people. A moratorium on executions is the only way to guarantee that another innocent person is not executed", said Scott Cobb, president of Texas Moratorium Network.

"Governor Perry and the Texas Board of Pardons and Paroles were provided a report written by fire expert Gerald Hurst before Willingham's execution that cast considerable doubt on the conclusion that the fire was arson. They ignored Hurst's report. Now, they have a responsibility to take action to ensure that Texas does not execute another innocent person", said Cobb.

Accompanied by 300 supporters standing outside the gates of the Texas Governor's Mansion, family members (pictured) of Cameron Todd Willingham delivered a letter to Gov Perry on October 28, 2006 asking him to stop executions and investigate the case of their step son/uncle to determine if he was wrongfully executed. The Willingham's were in Austin for the 7th Annual March to Stop Executions. The 10th Annual March to Abolish the Death Penalty is October 24, 2009 at the Texas Capitol in Austin.

Eugenia Willingham slipped the letter, along with a copy of an article from the Chicago Tribune that concluded that her stepson was probably innocent, through the bars of the front gate of the mansion and left it lying on the walkway leading to the front door of the mansion. A DPS trooper on duty refused to take the letter, so Eugenia left it on the walkway. According to a Public Information Request sent to Perry by TMN, we know that his staff later retrieved the letter and delivered it to Perry's office, however he never responded to Willingham's family.

Below is a copy of the letterThe Honorable Rick PerryGovernor of TexasAustin, Texas

October 28, 2006

Dear Governor Perry,

We are the family of Cameron Todd Willingham. Our names are Eugenia Willingham, Trina Willingham Quinton and Joshua Easley. Todd was an innocent person executed by Texas on February 17, 2004. We have come to Austin today from Ardmore, Oklahoma to stand outside the Texas Governor’s Mansion and attempt to deliver this letter to you in person, because we want to make sure that you know about Todd’s innocence and to urge you to stop executions in Texas and determine why innocent people are being executed in Texas.

Todd was not the only innocent person who has been executed in Texas. There have been reports in the media that Ruben Cantu and Carlos De Luna were also innocent people who were executed in Texas. It is too late to save Todd’s life or the lives of Ruben Cantu or Carlos De Luna, but it is not too late to save other innocent people from being executed. We are here today to urge you to be the leader that Texas needs in order to make sure that Texas never executes another innocent person. There is a crisis in Texas regarding the death penalty and we ask you to address the crisis. Because the public can no longer be certain that Texas is not executing innocent people, we urge you to stop all executions.

Strapped to a gurney in Texas' death chamber, just moments from his execution for setting a fire that killed his three daughters, our son/uncle, Todd Willingham, declared his innocence one last time, saying "I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do." Todd is now dead and can no longer speak for himself, so we have come to Austin to speak for him.

Before Todd’s execution, you were given a report from a prominent fire scientist questioning the conviction, but you did not stop the execution. The author of the report, Gerald Hurst, has said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

Another report issued in 2006 by a panel of national arson experts brought together by the Innocence Project concluded that the fire that killed Todd’s three daughters was an accident. The report says that Todd’s case is very similar to the case of Ernest Willis, who was convicted of arson murder and sentenced to death in 1987. Willis served 17 years in prison before he was exonerated in 2004 – the same year Todd was executed. The report says that neither of the fires which Todd and Ernest Willis were convicted of setting were arson. The report notes that the evidence and forensic analysis in the Willingham and Willis cases "were the same," and that "each and every one" of the forensic interpretations that state experts made in both men's trials have been proven scientifically invalid. In other words, Todd was executed based on “junk science”.

Please look into our son/uncle’s case and ask the District Attorney in Corsicana to reopen the investigation into the crime for which my brother was wrongfully executed. You should also establish an Innocence Commission in the next session of the Texas Legislature that could investigate my brother’s case, as well as other cases of possible wrongful executions, such as Ruben Cantu and Carlos De Luna.

Please ensure that no other family suffers the tragedy of seeing one of their loved ones wrongfully executed. Please enact a moratorium on executions and create a special blue ribbon commission to study the administration of the death penalty in Texas. Texas also needs a statewide Office of Public Defenders for Capital Cases. Such an office will go a long way towards preventing innocent people from being executed. A moratorium will ensure that no other innocent people are executed while the system is being studied and reforms implemented.

We look forward to hearing from you and we pledge to work with you to ensure that executions of innocent people are stopped.

Yours sincerely,

Eugenia WillinghamStepmother of Cameron Todd Willingham who raised him from the age of 13 months

Governor Perry and the Texas Board of Pardons and Paroles had been given a report before the execution that cast doubt that the fire was arson, but they ignored it.

The Innocence Project obtained, through the Freedom of Information Act, all the records from the governor’s office and the board pertaining to Hurst’s report. “The documents show that they received the report, but neither office has any record of anyone acknowledging it, taking note of its significance, responding to it, or calling any attention to it within the government,” Barry Scheck said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.”

LaFayette Collins, who was a member of the board at the time, told me of the process, “You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.” He noted that although the rules allowed for a hearing to consider important new evidence, “in my time there had never been one called.” When I asked him why Hurst’s report didn’t constitute evidence of “glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” Alvin Shaw, another board member at the time, said that the case didn’t “ring a bell,” adding, angrily, “Why would I want to talk about it?” Hurst calls the board’s actions “unconscionable.”

The article examines every aspect of the case and concludes that there is no doubt that an innocent person has been executed. There is scientific evidence to prove that the fire was not arson.

One of the people Grann interviewed was Johnny Webb, the person who claimed that Willingham gave him a jailhouse confession. Webb says:

“It’s very possible I misunderstood what he said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder.

“Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”

Longer excerpt from the segment on the dubious jailhouse snitch:

After speaking to Stacy, Gilbert had one more person she wanted to interview: the jailhouse informant Johnny Webb, who was incarcerated in Iowa Park, Texas. She wrote to Webb, who said that she could see him, and they met in the prison visiting room. A man in his late twenties, he had pallid skin and a closely shaved head; his eyes were jumpy, and his entire body seemed to tremble. A reporter who once met him described him to me as “nervous as a cat around rocking chairs.” Webb had begun taking drugs when he was nine years old, and had been convicted of, among other things, car theft, selling marijuana, forgery, and robbery.As Gilbert chatted with him, she thought that he seemed paranoid. During Willingham’s trial, Webb disclosed that he had been given a diagnosis of “post-traumatic stress disorder” after he was sexually assaulted in prison, in 1988, and that he often suffered from “mental impairment.” Under cross-examination, Webb testified that he had no recollection of a robbery that he had pleaded guilty to only months earlier.

Webb repeated for her what he had said in court: he had passed by Willingham’s cell, and as they spoke through a food slot Willingham broke down and told him that he intentionally set the house on fire. Gilbert was dubious. It was hard to believe that Willingham, who had otherwise insisted on his innocence, had suddenly confessed to an inmate he barely knew. The conversation had purportedly taken place by a speaker system that allowed any of the guards to listen—an unlikely spot for an inmate to reveal a secret. What’s more, Webb alleged that Willingham had told him that Stacy had hurt one of the kids, and that the fire was set to cover up the crime. The autopsies, however, had revealed no bruises or signs of trauma on the children’s bodies.

Jailhouse informants, many of whom are seeking reduced time or special privileges, are notoriously unreliable. According to a 2004 study by the Center on Wrongful Convictions, at Northwestern University Law School, lying police and jailhouse informants are the leading cause of wrongful convictions in capital cases in the United States. At the time that Webb came forward against Willingham, he was facing charges of robbery and forgery. During Willingham’s trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to “get time cut,” but the testimony was ruled inadmissible, because it was hearsay.

Webb, who pleaded guilty to the robbery and forgery charges, received a sentence of fifteen years. Jackson, the prosecutor, told me that he generally considered Webb “an unreliable kind of guy,” but added, “I saw no real motive for him to make a statement like this if it wasn’t true. We didn’t cut him any slack.” In 1997, five years after Willingham’s trial, Jackson urged the Texas Board of Pardons and Paroles to grant Webb parole. “I asked them to cut him loose early,” Jackson told me. The reason, Jackson said, was that Webb had been targeted by the Aryan Brotherhood. The board granted Webb parole, but within months of his release he was caught with cocaine and returned to prison.

In March, 2000, several months after Gilbert’s visit, Webb unexpectedly sent Jackson a Motion to Recant Testimony, declaring, “Mr. Willingham is innocent of all charges.” But Willingham’s lawyer was not informed of this development, and soon afterward Webb, without explanation, recanted his recantation. When I recently asked Webb, who was released from prison two years ago, about the turnabout and why Willingham would have confessed to a virtual stranger, he said that he knew only what “the dude told me.” After I pressed him, he said, “It’s very possible I misunderstood what he said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder.

“Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”

Aside from the scientific evidence of arson, the case against Willingham did not stand up to scrutiny. Jackson, the prosecutor, said of Webb’s testimony, “You can take it or leave it.” Even the refrigerator’s placement by the back door of the house turned out to be innocuous; there were two refrigerators in the cramped kitchen, and one of them was by the back door. Jimmie Hensley, the police detective, and Douglas Fogg, the assistant fire chief, both of whom investigated the fire, told me recently that they had never believed that the fridge was part of the arson plot. “It didn’t have nothing to do with the fire,” Fogg said.

After months of investigating the case, Gilbert found that her faith in the prosecution was shaken. As she told me, “What if Todd really was innocent?”

Incredibly, Keller's defense at the San Antonio proceeding was that she was just enforcing office hours and not preventing the Richard appeal from being filed. After all, her attorney Chip Babcock argued, the lawyers could have contacted other court judges. In fact, no one outside the court knew there was a judge on call, and court policy requires lawyers with appeals to go through the court clerk rather than contacting judges. For Keller now to say that the issue was not a substantive life and death matter, but rather a question of office hours, is laughable on its face.

Even less believable was a claim by the court's former general counsel, Ed Marty, that he had told Judge Johnson about the defense lawyer's request for additional time. Judge Johnson flatly denied that and testified Marty had simply said no filing had come in. Why would Judge Johnson have stayed late at the court waiting for that appeal to be filed if she knew it had already been rebuffed?

As with many a defendant who has used technicalities to evade conviction, Judge Keller will likely get off with a hand slap. But she committed gross negligence of her duty to provide impartial justice to all, even convicted murderers. If she does run for re-election in 2012, voters should replace her with a jurist who takes seriously his or her oath of office.

Let's all take a moment to reflect on Senator Ted Kennedy, who opposed the death penalty even though two of his brothers were murdered. The fight against the death penalty was very important to Senator Kennedy. He wrote a letter to the Pope shortly before his death in which he listed the ways in which his politics comported with Catholic social teaching, saying: “I have done my best to champion the rights of the poor and open doors of economic opportunity. I’ve worked to welcome the immigrant, fight discrimination and expand access to health care and education. I have opposed the death penalty and fought to end war. Those are the issues that have motivated me and been the focus of my work as a United States Senator.’’

Thank you, Senator Kennedy! You fought for so many. Today, we mourn you. Today, we are all Kennedys.

Wednesday, August 26, 2009

The San Antonio Express News, a newspaper that ran long articles covering each day of the trial of Judge Sharon Keller that took place in that city, says in an editorial today titled "Keller is unsuited for top court job" that "one step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals."

Even in Texas, the execution of a convicted murderer is not a commonplace occurrence. When the state is prepared to administer the ultimate, irreversible sanction of justice, its officials must ensure that the judicial process has functioned with meticulous care. A human life is at stake.

Sharon Keller has demonstrated herself to be unfit to serve as the highest judge on Texas’ highest criminal appeals court. The state Commission on Judicial Conduct properly prosecuted Keller for judicial misconduct in the case of death row inmate Michael Richard.

On the day of Richard’s scheduled execution in 2007, the U.S. Supreme Court announced that it was going to consider a case that would determine whether execution by lethal injection amounted to unconstitutionally cruel and unusual punishment. Richard’s attorneys had contacted Keller, the presiding judge on the Texas Court of Criminal Appeals, indicating they were planning to file an appeal on that basis.

The Supreme Court case led to a seven-month moratorium on lethal injections. But not before Texas sent Richard to the death chamber. Despite the news from Washington, Keller refused to keep the court clerk’s office open past 5 p.m. to receive the appeal from Richard’s attorneys.

Keller’s defense is that Richard’s attorneys failed to knock on the right doors and weren’t persistent enough. But Richard’s attorneys don’t represent the power of the state and don’t have the same professional and ethical responsibilities as a judge on the Court of Criminal Appeals.

Keller’s actions are at issue, not those of Richard’s attorneys. The judge failed to follow standard procedure for after-hours appeals in death penalty cases. That’s why she faces five counts of official judicial misconduct. In the end, the Supreme Court ruled that lethal injections are constitutional. Richard, who had been on death row for two decades for the gruesome rape and murder of Marguerite Dixon, would have been executed anyway — without questions about the impartiality of Texas justice.

Sign the petition to urge Governor Rick Perry and the State of Texas to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas executed an innocent man.

The Chicago Tribune is breaking the story that the investigator for the Texas Forensic Science Commission is going to report that the fire for which Cameron Todd Willingham was sentenced to death for setting to murder his children was an accidental fire and not arson. Willingham always maintained his innocence. He was executed for arson/murder in 2004. If the TFSC takes the investigator's report and accepts his conclusions then it could acknowledge in its own report that Texas has executed an innocent person. The State of Texas should halt executions in light of the news that the investigator hired by the Texas Forensic Science Commission has concluded that the fire in the Cameron Todd Willingham case was accidental and not arson.

"Texas Moratorium Network has been warning for many years that Texas runs the risk of executing an innocent person because of the pace of executions in Texas and the many flaws in the system that can lead to innocent people being wrongfully convicted. Innocent people have been released from Texas death row in the past, including Ernest Willis. It is too late to release Todd Willingham because Texas already executed him in 2004 for supposedly setting a fire to murder his three children. Today's news that the fire in the Willingham case was not arson means that Texas has moved another step closer to having to face the unspeakable horror that it has executed an innocent person", said Scott Cobb, president of Texas Moratorium Network.

Ernest Willis was released from Texas death row in 2004 after he was exonerated of having set an arson fire to commit murder. Willis had spent 17 years on Texas death row for murder/arson. Willis had been wrongfully convicted of setting a 1986 fire that killed two sleeping women in Iraan, about 230 miles west of San Antonio.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.

The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

Accompanied by 300 supporters standing outside the gates of the Texas Governor's Mansion, family members (pictured) of Cameron Todd Willingham delivered a letter to Gov Perry on October 28, 2006 asking him to stop executions and investigate the case of their step son/uncle to determine if he was wrongfully executed. Eugenia Willingham slipped the letter, along with a copy of an article from the Chicago Tribune that concluded that her stepson was probably innocent, through the bars of the front gate of the mansion and left it lying on the walkway leading to the front door of the mansion. A DPS trooper on duty refused to take the letter, so Eugenia left it on the walkway. According to a Public Information Request sent to Perry by TMN, we know that his staff later retrieved the letter and delivered it to Perry's office, however he never responded to Willingham's family.

Below is a copy of the letterThe Honorable Rick PerryGovernor of TexasAustin, Texas

October 28, 2006

Dear Governor Perry,

We are the family of Cameron Todd Willingham. Our names are Eugenia Willingham, Trina Willingham Quinton and Joshua Easley. Todd was an innocent person executed by Texas on February 17, 2004. We have come to Austin today from Ardmore, Oklahoma to stand outside the Texas Governor’s Mansion and attempt to deliver this letter to you in person, because we want to make sure that you know about Todd’s innocence and to urge you to stop executions in Texas and determine why innocent people are being executed in Texas.

Todd was not the only innocent person who has been executed in Texas. There have been reports in the media that Ruben Cantu and Carlos De Luna were also innocent people who were executed in Texas. It is too late to save Todd’s life or the lives of Ruben Cantu or Carlos De Luna, but it is not too late to save other innocent people from being executed. We are here today to urge you to be the leader that Texas needs in order to make sure that Texas never executes another innocent person. There is a crisis in Texas regarding the death penalty and we ask you to address the crisis. Because the public can no longer be certain that Texas is not executing innocent people, we urge you to stop all executions.

Strapped to a gurney in Texas' death chamber, just moments from his execution for setting a fire that killed his three daughters, our son/uncle, Todd Willingham, declared his innocence one last time, saying "I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do." Todd is now dead and can no longer speak for himself, so we have come to Austin to speak for him.

Before Todd’s execution, you were given a report from a prominent fire scientist questioning the conviction, but you did not stop the execution. The author of the report, Gerald Hurst, has said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

Another report issued in 2006 by a panel of national arson experts brought together by the Innocence Project concluded that the fire that killed Todd’s three daughters was an accident. The report says that Todd’s case is very similar to the case of Ernest Willis, who was convicted of arson murder and sentenced to death in 1987. Willis served 17 years in prison before he was exonerated in 2004 – the same year Todd was executed. The report says that neither of the fires which Todd and Ernest Willis were convicted of setting were arson. The report notes that the evidence and forensic analysis in the Willingham and Willis cases "were the same," and that "each and every one" of the forensic interpretations that state experts made in both men's trials have been proven scientifically invalid. In other words, Todd was executed based on “junk science”.

Please look into our son/uncle’s case and ask the District Attorney in Corsicana to reopen the investigation into the crime for which my brother was wrongfully executed. You should also establish an Innocence Commission in the next session of the Texas Legislature that could investigate my brother’s case, as well as other cases of possible wrongful executions, such as Ruben Cantu and Carlos De Luna.

Please ensure that no other family suffers the tragedy of seeing one of their loved ones wrongfully executed. Please enact a moratorium on executions and create a special blue ribbon commission to study the administration of the death penalty in Texas. Texas also needs a statewide Office of Public Defenders for Capital Cases. Such an office will go a long way towards preventing innocent people from being executed. A moratorium will ensure that no other innocent people are executed while the system is being studied and reforms implemented.

We look forward to hearing from you and we pledge to work with you to ensure that executions of innocent people are stopped.

Yours sincerely,

Eugenia WillinghamStepmother of Cameron Todd Willingham who raised him from the age of 13 months

Sunday, August 23, 2009

Rick Casey of the Houston Chronicle has an opinion column today titled "My thanks to maligned Judge Keller", in which he thanks Sharon Keller for having inadvertently caused some improvements to the Court of Criminal Appeals.

The firestorm of criticism that followed her decision not to keep the clerk's office open for a late filing, based on a U.S. Supreme Court decision from earlier in the day, of a man scheduled to be executed an hour after closing time, has produced some improvements.

According to her own testimony and that of other court officials during this week's four-day trial, the court had a protocol for dealing with execution day filings, but it was something of a secret.

For one thing, it wasn't written.

For another, the court staff was not given any formal training on it.

Part of the procedure was the appointment, on a rotating basis, of a single judge to whom all communications regarding the pending execution would be directed. But the name of that judge was not to be disclosed to anyone outside the court, including lawyers for the condemned man.

In Keller's seven years as the court's chief judge, that was the state of things.

Now, due to the allegations that she violated that procedure by not referring the call seeking to file a late plea for a stay of execution to Judge Cheryl Johnson, the assigned judge for that execution day, everyone knows the procedures.

The court's judges, some of whom were waiting around in expectation of a filing and were angered to learn days later of Keller's actions, agreed to put the protocol in writing. And the protocol has been widely publicized in the controversy.

There is another improvement. Ed Marty, the general counsel who took the request to Keller rather than to Johnson (who testified she would have accepted late pleadings), retired.

His replacement, Sian Schilhab, said she contacts the appropriate attorneys days ahead of the prosecution to make sure they know she is available up until the execution takes place. She said she not only gives them her cell phone number, but forwards the office phone to her cell.

She also says all outside communications not only “clearly go to the assigned judge, but I try to communicate them to all the judges, or at least their staffs.”

She said that's not because of the recent controversies, but because “I believe in more communication rather than less.”

If Keller had instructed Marty to do that, we wouldn't have had this firestorm.

Saturday, August 22, 2009

It will probably be months before a decision is made on whether appellate Judge Sharon Keller should be censured or forced to resign for closing the court clerk's doors promptly at 5 p.m., when she knew that a death row inmate was about to file an appeal, lawyers involved in the case said.

"There won't be any decision, I would say, until December," said Seana Willing, executive director of the Texas Commission on Judicial Misconduct.

The unusual trial of Keller, presiding judge of the Texas Court of Criminal Appeals, ended Thursday in San Antonio. In testimony, she denied having done anything wrong.

For many opponents of the death penalty, the judicial misconduct proceedings this week have become a referendum on the career of Keller, a conservative Republican and former Dallas County prosecutor who has a reputation for favoring the prosecution in death penalty cases.

But those calling for her ouster will have to wait. The special master overseeing the trial, Judge David Berchelmann Jr., must wade through transcripts of the four days of testimony, accept objections from both sides and then submit "findings of fact" to a 13-member commission.

The panel – made up of six judges, two private lawyers and five state residents appointed by the governor – then will decide whether to censure or remove the judge, a process that has no time limit.

If the judicial misconduct panel should decide to call for Keller's removal, a seven-member panel of appellate judges, selected at random, must review the decision. The panel's decision can be appealed to the Texas Supreme Court.

Texas Moratorium Network, which filed a judicial complaint against Sharon Keller in November 2007, has monitored the trial of Sharon Keller and finds the evidence presented at trial supports the severest sanctions against Keller - her removal from office for violating the Execution-Day Procedures of her court and for casting discredit on the Texas judiciary.

"Keller’s testimony on the witness stand that in hindsight she would do nothing differently on Sept 25, 2007 if she had it to do over again, has further damaged the integrity of the Texas judiciary. The most effective way to restore integrity to Texas’ highest criminal court is for Sharon Keller to be removed from office. She has seen that the consequences of her saying “we close at 5” were that Michael Richard was unable to file an appeal with the Texas Court of Criminal Appeals, even though his lawyers called the court again shortly before 6 PM and were told not to bother to bring the appeal to the court because no one was there to accept it”, said Scott Cobb, president of Texas Moratorium Network.

“Cheryl Johnson, the duty judge assigned to receive all communications regarding the case of Michael Richard on Sept 25, 2007, testified at the trial that she was not informed about the request by Richard’s lawyers to file a late appeal. She testified that she would have accepted the appeal. Sharon Keller was obligated by the rules of her own court to direct all communications regarding Richard to Judge Johnson,” said Cobb.

“Sharon Keller could have avoided being charged with misconduct and incompetence, if she had responded to Ed Marty when he called her at 4:45 pm on Sept 25 by saying, “tell them the clerk’s office closes at 5, but they can submit an appeal after 5 by directly contacting any judge on the court who is willing to accept the appeal. Let them know that Judge Johnson is the assigned duty judge on the Richard case and inform Judge Johnson of their request to file an appeal”, said Cobb.

Excerpt from the judicial complaint filed by TMN: "It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters.”

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at http://www.youtube.com/watch?v=dbVd9P3R7MU. The video contains a statement by the sister of Michael Richard outside the CCA. The video also contains footage of the clerk’s office remaining open 3-4 minutes after 5PM to receive the copy of the complaint.

Wednesday, August 19, 2009

Chuck Lindell of the Austin American Statesman has been producing excellent journalism on the Sharon Keller case. In a blog post today, he reports on the exchange on the stand between Keller and prosecutor Mike McKetta. During the exchange, Keller confirmed that she used the phrase "we close at 5" during the telephone conversation on Sept 25, 2007 with general counsel Ed Marty.

Based on Cheryl Johnson's testimony on Monday that Johnson was the duty judge and Keller's testimony Tuesday, it is clear that Keller violated the Execution Day Procedures and should be removed from office.

McKetta: “You remember saying ‘No, why?’ … And your best recollection is that Ed Marty said, ‘They wanted to file something but they were not ready.’ … And you said, ‘No,’ right?”

Keller agrees.

Then McKetta pointed to an Oct. 3, 2007 Austin American-Statesman article that quoted Keller as saying: “And given the late request, and with no reason given, I just said, ‘We close at 5.’ I didn’t really think of it as a decision as much as a statement.”

On Tuesday in court, McKetta asked: “You did say we close at 5?”

Keller: “I think I did.”

McKetta: “So you didn’t just say, ‘No, why?’ and ‘No’?

Keller: “I think I did.”

XXX

McKetta: “So in addition to ‘No, why?’ and ‘No,’ there was a clear statement that we close at 5?

Keller: “I told him that we close at 5.”

XXX

McKetta: “At a minimum, you knew they wished to file and were not ready?”

Keller agrees.

McKetta: “What more did you ask to know before you said no a second time?”

Keller: “I don’t remember.”

Questions about following the Court of Criminal Appeals’ execution-day procedures:

“You knew that this (call from Marty) was about tonight’s execution?” McKetta asked.

“Yes.”

McKetta: “You knew you were not the assigned judge?”

“Yes.”

McKetta: “You knew there was an assigned judge?”

“Right.”

XXX

McKetta: “You were aware that the lethal injection protocol might be basis for a challenge (by Richard) that very day?”

“Yes.”

XXX

McKetta: “You knew the call dealt with the scheduled execution?”

“Right.”

“You knew it dealt with somebody making a call to the court?”

“Right”

“That it was about that night’s execution?”

“Right.”

“That you were not the assigned judge?”

“Right.”

“That there was an assigned judge?”

“Right.”

“That if the execution were to take place that it could not be undone?”

Tuesday, August 18, 2009

David Dow and Sharon Keller are expected to testify on day two of the trial of Sharon Keller, according to the Texas Lawyer blog.

The highlight of day one yesterday was the testimony of Cheryl Johnson, the duty judge on the night of Sept 25, 2007 when Michael Richard was executed. According to reporting in the Statesman by Chuck Lindel, Johnson:

said Keller violated Court of Criminal Appeals procedure in 2007 by unilaterally denying defense lawyers the opportunity to file execution-day briefs after 5 p.m. after she refused to keep her court open late to accept a man's last-minute appeal.

"She should have directed (the request to file late briefs) to me," said Johnson, who had been assigned by rotation to be the only judge expected to handle execution-day phone calls, faxes and filings from lawyers for the inmate, Michael Richard.

"And I would have told them that they could file," Johnson said. "It's an execution. They might be valid pleadings. I have no other way of knowing."

Johnson, however, said she didn't learn about the request for more time until four days after Richard was executed — an account contradicted in parts of a witness deposition revealed Monday.

"I was upset by it. I was frustrated," she said. "And it made the court look bad."

Below are a couple of other news stories from day one. You can also see the videos on YouTube here and here.

Monday, August 17, 2009

Editorial Board

Monday, August 17, 2009

No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge's many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.

A politician's reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.

Beyond the question of whether Keller's handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state's court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.

Texas has always relished its "tough on crime" reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn't get you on television.

Keller — and by extension, the state's justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today's proceedings before the State Commission on Judicial Conduct.

A brief background: Lawyers for convicted killer Michael Richard tried to file a last-minute, after-hours appeal in 2007. According to Richard's lawyers, they were having computer problems and asked if they could file motions after 5 p.m. They said they were told "no."

Keller's lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.

Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.

The last-minute appeal was based on the U.S. Supreme Court's announcement earlier that same day that it would hear a case arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.

Keller's critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state's Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.

The he-said, she-said nature of the depositions doesn't hold much promise for shedding light on the situation but offers a rare glimpse into the court's inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.

Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it's all said and done.

If so, that slap on the wrist will result in yet another black eye on a Texas justice system that is supposed to be blind.

In a case that has inflamed passions on both sides of the death penalty debate, Judge Sharon Keller goes on trial today on civil charges that she improperly closed the state's highest criminal court to an execution-day appeal in 2007 because the inmate's lawyers were running late.

The moral debate over the death penalty, however, will play no role in Keller's trial, said her lawyer, Chip Babcock — and prosecutors agree.

"This isn't about whether you are for or against the death penalty. It's really about process," said Seana Willing, executive director of the State Commission on Judicial Conduct, which investigates allegations of wrongdoing by Texas judges.

"I think even the most ardent supporter of the death penalty would agree that you want to make sure ... the process is followed and there aren't mistakes along the way," said Willing, who will act as co-examiner, or prosecutor, during Keller's trial.

Still, opponents of capital punishment relish the idea of Keller, a self-described pro-prosecution judge, sitting at the defense table to fight the potentially career-ending charges.

These opponents say Keller's decision to enforce the court's 5 p.m. closing time epitomizes a flawed death penalty system that values ruthless efficiency over careful administration of the ultimate punishment.

"Sharon Keller is exhibit A on why we need a moratorium on executions in Texas," said Scott Cobb, president of the Texas Moratorium Network, which filed a state ethics complaint over Keller's handling of Michael Richard's case that was signed by about 1,900 people in an online petition.

"We run major risk of having an innocent person executed if the judiciary is not running properly, and it's not as long as Sharon Keller is presiding judge" of the Court of Criminal Appeals, Cobb said.

Supporters, however, praise Keller as a tough-on-crime jurist who made the right decision regarding Richard, who lived through 20 years of appeals before his Sept. 25, 2007, execution. They say it is galling that Keller's 15-year judicial career is imperiled by a case involving Richard, a high school dropout who raped and killed a Hockley mother of seven grown children.

"I think Sharon Keller is getting a rough ride, and I don't think she deserves it," said Austin lawyer William "Rusty" Hubbarth, vice president of Justice for All, a national victims' advocacy group. "I think she is a target of the abolition movement because she has been a supporter of capital punishment, which, if we all look at it, basically means she is a supporter of the will of the jury."

Heading into trial, Willing and Babcock agree that mistakes were made during events leading to Richard's execution. The legal debate will center on who made those mistakes.

Prosecutors will argue that Keller ignored her court's execution-day procedures — violating her duty as a judge and bringing discredit to the judiciary — when she refused a request by Richard's lawyers to keep the court open past 5 p.m. so they could file a stay of execution request.

The motion was based on news from the U.S. Supreme Court, which had announced that day that it would take a case challenging lethal injection as cruel and unusual punishment. Richard's lawyers with Texas Defender Service also said computer problems delayed their work.

Babcock said he will argue that Richard's lawyers failed to act promptly and did not experience severe computer difficulties — claims Texas Defender Service lawyers denied under oath in pretrial depositions. He will also argue that Richard's lawyers neglected appellate rules that would have allowed them to file briefs with any judge on the nine-member court.

"Judge Keller did not, and could not have if she wanted to, close access to the court," he said.

Keller's civil trial, in the San Antonio courtroom of state District Judge David Berchelmann Jr., will be conducted under special rules applying to allegations of judicial misconduct. It is the first step in a judicial review process that could result in charges being dropped or Keller being censured or removed from office.

Keller, a Republican, became the first woman to serve on the Court of Criminal Appeals in 1995.

She was elected presiding judge in 2000, and her current term will end in 2012.

Saturday, August 15, 2009

Representatives of Peoples' Judicial Complaint Signed by About 1,900 Members of the Public to Participate in Demonstration at Trial of Sharon Keller

A group of people who signed a judicial complaint against Judge Sharon Keller will hold a demonstration at 8 AM in San Antonio at the Bexar County Courthouse before Keller's trial begins on August 17. The trial is expected to begin at 9:30 AM. The demonstration will be held near the entrance of the building in which the trial will take place in the courtroom of David Berchelmann jr, presiding judge of the 37th District Court, at 100 Dolorosa in San Antonio. The group will represent the approximately 1,900 people who signed a judicial complaint against Keller submitted by Texas Moratorium Network to the State Commission on Judicial Conduct in November 2007.

Why: "Keller has damaged the integrity of the Texas judiciary and violated the public trust placed in her by the people of Texas. She has violated several provisions of the Code of Judicial Conduct and denied Michael Richard his constitutional right not to be deprived of life without due process and denied his right to be heard in court. Because of her arbitrary decision not to stay open to accept the appeal of death row prisoner Michael Richard, which she made in violation of her own court's rules and without consulting the other judges on the Court, Keller should be removed from office", said Scott Cobb, president of Texas Moratorium Network.

From the judicial complaint filed by TMN: "It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters. Justice was not done in the Richard case, and if it was not done because Keller dishonestly said "We close at 5", then there is no question that Keller is unfit to be a judge and should be removed from office".

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at http://www.youtube.com/watch?v=dbVd9P3R7MU. The video contains a statement by the sister of Michael Richard outside the CCA.

Friday, August 14, 2009

Sharon Keller's trial will be conducted in the courtroom of David Berchelmann, Jr, presiding judge of the 37th District Court, 100 Dolorosa, San Antonio, Texas 78205. Berchelmann has been appointed "special master" by the Texas Supreme Court to conduct the hearing on the charges against Keller.

The clerk for Judge Berchelmann, Virginia Rainey, said that the room will hold about 60 people.

The clerk's office phone number is 210 335-2515, email Clerk37@Bexar.org.

Start times for the Trial August 17 - 21

Monday - Keller Trial begins at 9:30 am

Note: Courtroom will open at 8:00 am - other matters will be heard from 8:30-9:30 am. (The clerk she said that you can bring in a laptop if it is quiet, so be sure to turn of the sound so it doesn't make any surprising noises. The clerk does not think there is WIFI in the courtroom.)

Thursday, August 13, 2009

The New York Times has an interesting article (Judges’ Dissents for Death Row Inmates Are Rising) on some original research they conducted that found that some judges in federal appeals courts are writing more and more passionately written dissents in death penalty cases.

Excerpt:

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

Tuesday, August 11, 2009

Sharon Keller submitted a motion on July 31, 2009 to the judge acting as special master in her upcoming trial arguing that she has a "property right" to her position as Presiding Judge of the Texas Court of Criminal Appeals and therefore she should not be deprived of that property except by the higher standard of "clear and convincing standard of proof" instead of the standard provided for in the rules of the State Commission on Judicial Conduct, which require only the lower standard of preponderance of the evidence.

“Application of the preponderance of the evidence standard would not be sufficient to ensure that any deprivation of Respondent’s [Keller’s] property interest in her position as Presiding Judge of the Court of Criminal Appeals would not be arbitrary,” Keller alleges in the motion.

Keller claims she has a "legitimate claim to entitlement to her position as Presiding Judge of the CCA".

Michael Richard had a legitimate claim not to be deprived of life without due process of law. He had a legitimate claim not to be told "we close at 5" by the presiding judge of the Texas Court of Criminal Appeals on the day of his execution.

Saturday, August 08, 2009

The Dallas Morning News has a Q&A with State Rep Robert Miklos, the first-term legislator and chair of the subcommittee on capital punishment in the last session of the Texas Legislature. No big surprises in the interview. Miklos is a former prosecutor. He voted against HB 2267, the bill that would have ended the death penalty for people who do not kill anyone but are convicted under the Law of Parties. He opposes abolishing the death penalty, but he says the process must be fair, so maybe one day he will push for a moratorium on executions and a study commission.

From the article:

What did you learn that surprised you about the way the death penalty is applied in Texas?

I am pretty familiar with how the death penalty is applied in Texas, both from a legal and practical standard, but what I was most surprised about was the previous lack of discussion on the subject by lawmakers. I support the use of the death penalty in Texas, but I believe with the recent exonerations in Dallas County, and across Texas, that we need to make sure of what we are doing. The process must be fair, and the accused must be represented by competent counsel. That's why I joint-authored HB 2058, which relates to the standards for attorneys representing indigent clients in capital cases.

You began the session as a supporter of capital punishment because of deterrent value. Did your position change as you heard more about Texas' system during the session?

No. I believe that our peace officers and our children deserve the added protection that having the death penalty as a potential punishment provides. While you can't legislate away crime, I continue to believe that having the death penalty as an option does deter certain criminal acts.

Did any witness impress you with particularly compelling or eye-opening testimony?

Yes. Several family members of murder victims impressed me with the level of grief, and forgiveness to the criminal, that they displayed. These are real families destroyed forever by terrible acts, and they all deserve thoughtful consideration of our criminal procedures, not bluster and bravado.

Most bills of any kind die in a session of the Legislature. Is there one you most regret didn't make it after coming out of Criminal Jurisprudence?

Yes. SB 117. This bill would have required police departments to adopt certain standard procedures regarding the identification of suspects in a criminal case. Unintentionally faulty identification of suspects by witnesses, understandably shaken by the recent impact of the crime, has been the basis for many of the false convictions in Texas. I think it would surprise many people how common-sense these measures would have been, how fair and flexible for police departments and what procedures they would have replaced.

How would you describe the politics of Texas' death penalty to a non-Texan?

Texans overwhelmingly support the death penalty and believe in its value as an option in the criminal justice system. Like any political issue in Texas, the extremes on both sides of the political spectrum attempt to hijack the debate by demanding absolute obedience to certain ideological absolutes.

Some death penalty opponents say attitudes are shifting and that Texas may someday join the states that don't apply the death penalty. What is your assessment?

I don't think that Texans will support abolishing the death penalty anytime soon. I think what may happen, though, is that the cost of a death penalty case may become so expensive that in these tough economic times, many counties may forgo seeking the death penalty because they simply can't afford it.